California Prop 64 Frees Marijuana Prisoners And Clears Felony Records

One of the best aspects of California’s Adult Use of Marijuana Act, or Prop 64 on the ballot, is that its legalization of personal use and cultivation goes into effect retroactively. Prop 64’s reduction of misdemeanors to tickets is retroactive. Prop 64’s re-definition of most grow and sales felonies down to misdemeanors is retroactive. Prop 64’s lowering of sentences and fines is retroactive.

It means on November 8th when we pass Prop 64, we will free hundreds of thousands of Californians.

Or we could vote against it so the next Donna Lambert has to suffer a raid, get arrested, hire a lawyer, go to trial, mount a defense, and cop a plea.
Or we could vote against it so the next cannabis felon the cops catch has to suffer a raid, get arrested, hire a lawyer, go to trial, mount a defense, and cop a plea.

Literally freed from prison will be those felons serving time whose crimes now weren’t felonies.

Freed from the scarlet letter of “convicted felon” on one’s record will be those felons whose crimes now weren’t felonies.

Freed from any criminal record, jail time, or fine will be those whose misdemeanors are now either just infractions or now made legal.

Can you imagine any compassionate person voting against Prop 64, to keep those people subject to second-class citizenship as a criminal? What if that person was someone who’d been raided by an armed SWAT team and faced seven felony counts herself?

I don’t have to imagine it, because that person is Donna Lambert in San Diego.

Donna has been a longtime medical marijuana activist. She had been supplying marijuana to patients when she was caught in a sting by law enforcement known as Operation GreenRx. The sting led to a raid by law enforcement armed with automatic weapons and clad in full body armor. She faced seven felony charges as a result.

Bonnie Dumanis, the San Diego prosecutor who authorized the raid on Donna Lambert, is also voting no on Prop 64.

Donna Lambert is voting against Prop 64. In a Facebook post of mine concerning how Prop 64 will free pot prisoners, Lambert added the following in the comments:

“No it wont. It will only allow to eliminate for people that would not have had those charges under prop 64. The fine print is what matters. Did you have 5 clones, 5 teenager, 5 budding, Too bad. Your a criminal under prop 64. Therefore, your charges WILL NOT be removed. Also, did you sell some marijuana? That wont be dropped. You did not have the proper liscencing.”

This is a very typical tactic of the Stoners Against Legalization. They find a positive aspect of Prop 64 they know will influence people, then they try to convince them it’s too good to be true and that there’s some catch or “fine print” involved that erases the positive. They know most people aren’t going to read the text of the law or understand it if they did. They know most people harbor some inherent distrust of government and politics. Just give them a plausible enough pseudo-legalese explanation and they’ll buy it.

I’m not one of those people. I look shit up. And I do not suffer gladly the fools, charlatans, and prohibition profiteers who intentionally try to confuse people with lies, half-truths, and misdirections intended to make them vote with cops to maintain prohibition.

First of all, in her comment she tacitly admits that even in her misunderstanding, Prop 64 will eliminate felony charges for some people. But to hell with them, I guess.

Donna Lambert, the sheriffs and prosecuting attorneys who helped bust you agree with you on Prop 64!
Donna Lambert, the sheriffs and prosecuting attorneys who helped bust you agree with you on Prop 64!

But more important: she’s just wrong.

Take the cultivation of 15 cannabis plants example she gave. That is punished now as a felony, with 16 months to 2-3 years as punishment. [Current §11358, punished under subdivision (h) of Section 1170 of the Penal Code]

Under Prop 64, that crime is reduced to a misdemeanor, with a $500 fine and/or 6 months [§11358(c)], unless he was 18-20 at the time, then it’s a $100 ticket [§11358(b)], or was a minor at the time, then it’s just counseling [§11358(a)], presuming a first or second offense that doesn’t involve minors, water violations, hazardous substances, environmental harm, or harmed threatened animals [§11358(d)].

Prop 64 Flyer
Have you ever noticed how the Stoners Against Legalization tend to tell you what Prop 64 is going to do without ever citing its actual text? Get the facts. (Image: FriendsOfProp64.org / Chris Conrad)

So, under Prop 64, the cultivation that was a felony is now a misdemeanor, but Lambert asserts that Prop 64 “will only allow to eliminate for people that would not have had those charges under prop 64.”

Right. Under Prop 64, the cultivator would not have had a felony charge. But maybe she’s thinking that Prop 64 is only allowing for elimination of that which becomes legal under Prop 64. Like, if the cultivator had just five plants and got a felony, he could have it removed because five plants are legal.

Wrong again. Both the acts that become legal and the acts that are reduced to misdemeanors are eligible for resentencing and expungement. The fine print that matters would be §11361.8(a), which reads (emphasis mine):

(a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by this Act.

So, the fifteen-plant guy busted this year who is sitting in a cell now with a two-year sentence would, indeed, be freed by the passage of Prop 64.

I can't imagine why anybody would want to vote to keep marijuana growing and selling felonies in place.
I can’t imagine why anybody would want to vote to keep marijuana growing and selling felonies in place.

But what if his fifteen plant bust was eight years ago? That’s where §11361.8(e) kicks in:

“(e) A person who has completed his or her sentence for a conviction under Sections 11357, 11358, 11359, 11360, whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense, may file an application before the trial court that entered, the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by this Act.”

So, your fifteen plant guy busted eight years ago who’s cleared papers but still has a felony record would, indeed, get to seal his record and end his time as a felon when Prop 64 passes.

OK, but that’s just cultivation. What about selling? As Lambert asserts, “[D]id you sell some marijuana? That wont be dropped. You did not have the proper liscencing.”

Did you notice the parts in those paragraphs above that include §11359 (Possession for Sale) and §11360 (Unlawful Sale)? The “proper licensing” doesn’t enter into it. Those two sections are the crimes Prop 64 maintains for selling without a license, which drop from 16-month to 2-3-year felonies (Intent) or 2-3-4-year felonies (Sales) down to misdemeanors with 6-months and/or $500 fine.

Selling without a license is subject to separate civil penalties, as described in §26038(a):

(a)   A person engaging in commercial marijuana activity without a license required by this division shall be subject to civil penalties of up to three times the amount of the license fee for each violation, and the court may order the destruction of marijuana associated with that violation in accordance with Section 11479 of the Health and Safety Code. Each day of operation shall constitute a separate violation of this section. All civil penalties imposed and collected pursuant to this section by a licensing authority shall be deposited into the General Fund except as provided in subdivision (b).

However, Prop 64 is not authorizing retroactive civil penalties. It is providing relief from criminal penalties. Lambert’s belief that “selling without a license” wouldn’t qualify for relief fails because the “commercial marijuana activity without a license” she describes is punished by civil, not criminal, penalties. The state can’t go back in time to collect civil penalties for operating without a license that didn’t exist back then.

Donna Lambert describes the harrowing ordeal she suffered in 2009 when she was raided by police and charged with nine marijuana felonies that she’s voting to keep in place.

How can Donna Lambert vote against Prop 64 and condemn the next 8,800 people who get marijuana felonies in California every year to an ordeal like this:

“For a total of two quarter ounces of marijuana, they did a swat style raid on my home and pointed assault rifles at me and tore my house apart. The mess took me months to clean up, after I was released from jail.” — Donna Lambert

The Stoners Against Legalization will tell you that Prop 215 plus decriminalization plus Prop 47 (recent changes in felony prosecution) means everything is just fine and we don’t need to pass Prop 64.

Well, now, anyway. Earlier this year, Prop 215 plus decrim plus Prop 47 must not have been enough, because they were vigorously promoting marijuana legalization under the perennial utopian initiative for which they never gain enough signatures or funding.

“CChi 2016 it’s actually the most honest and compassionate initiative as far as preventing the 50,000 or more arrests for marijuana in California every year.” — Donna Lambert

Sure, I’d vote for it. I doubt 50%+1 voters would, but I would. But CCHI didn’t make the ballot in 2016. Or in 2014. Or in 2012. Or in 2010. Or in 2008. Or in 2006. Or in 2004. Or in 2002. Or in 2000. How much longer should convicted felons wait for the grassroots to figure out how to raise enough money and gather enough signatures to place something on the ballot to prevent those 50,000 or more arrests?

I don't mind if you want to vote to keep yourself a criminal... so long as you promise not to profit from new legal market.
I don’t mind if you want to vote to keep yourself a criminal… so long as you promise not to profit from new legal market.

Obviously, the Donna Lambert raid shows that Prop 215 isn’t enough. From my understanding, she was a Prop 215-protected patient engaged in what Letitia Pepper tells me is a constitutionally-protected right to marijuana. And yet, the cops still went undercover and busted Lambert, then charged her with seven felonies, which she only escaped by taking a plea deal.

Lucky for her, she avoided jail time. But I’m sure the ordeal of the trial, having to hire defense lawyers, and still having to plead guilty to a misdemeanor possession charge was a whole lot to go through. She even said at the time, “It’s not a victory; it’s kind of a draw.”

Donna Lambert’s no on Prop 64 vote means she’s approving of the felony charges the next middle-aged lady like her caught up in a police sting over marijuana will be facing. But after Prop 64 passes, there won’t be felonies to threaten her with, unless she’s got priors or commits aggravated offenses. The trick Bonnie Dumanis and other DAs use, the piling on as many felonies as possible to guarantee plea deals, won’t be available any more.

Speaking of Dumanis, it’s got to feel strange for Lambert to find herself in agreement with her prosecutor on a marijuana issue. Lambert’s vote is giving support to Dumanis to do unto others what she did unto her. Because, as Dumanis explains:

Proposition 64…  would bring a handful of problems. Perhaps of most concern is… more impaired drivers on our roadways… this is a bad idea for California. In the states where marijuana has been legalized, marijuana-related traffic deaths are up dramatically, youth access to marijuana has sharply risen, emergency department marijuana related and hospital marijuana related admissions have risen dramatically, tourism has been negatively affected, and the underground black market distribution and sales of marijuana has increased dramatically.

I can’t believe I have to convince Donna Lambert that it’s a good idea to take away from cops the power to fuck with us.

 

Russ Belville
About Russ Belville 199 Articles
Russ Belville - or "Radical" Russ, as he is known on-air - hosts The Marijuana Agenda, a live news and talk radio program for the cannabis community, weekdays at 3pm Pacific on MJAgenda.com.  The show is based in Portland, Oregon, but "Radical" Russ has traveled over 300,000 air miles in the past five years, bringing his show to report live from hundreds of cannabis conferences, marijuana expos, hemp festivals, and legalization events in over 70 North American cities.